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McGonigal v. Sears Roebuck and Co.

March 13, 2009

MICHAEL MCGONIGAL, ET AL., PLAINTIFFS,
v.
SEARS ROEBUCK AND CO., DEFENDANT



MEMORANDUM OPINION TIMOTHY R. RICE March 13, 2009 U.S. MAGISTRATE JUDGE

Plaintiff Michael McGonigal has filed motions in limine to preclude defendant Sears Roebuck & Co. ("Sears") from (1) admitting documents regarding its quality control/pre-sale testing and inspection procedures into evidence; (2) arguing, implying or offering into evidence, or offering any testimony that McGonigal misused the lawn tractor; and (3) offering the opinions of experts Dan Neilson and Gerald Coons. At oral argument on March 10, 2009, Sears withdrew its claims McGonigal assumed the risk of injury, engaged in highly reckless conduct, and spoliated the evidence. For the following reasons, I deny McGonigal's motion in limine.

I. Background

On September 14, 2005, McGonigal suffered injuries to his right index finger and right middle finger while using a Craftsman riding lawn tractor he purchased from Sears in Newark, Delaware. See Plaintiffs' Motion in Limine at ¶ ¶ 1, 2, 16, McGonigal v. Sears Roebuck & Co., No. 07-4115 (E.D. Pa. filed Feb. 9, 2009) [hereinafter "Plaintiffs' Motion"]. McGonigal had started to mow his lawn when he noticed the tractor was not picking up the grass clippings and discharging into the grass catcher. Id. at ¶ 9. According to McGonigal, before dismounting the tractor, he depressed the clutch/brake pedal, stopped the tractor, placed the traction drive in neutral, engaged the emergency brake lever, and disengaged the attachment clutch lever. Id. at ¶ 10. These steps, he believed, stopped the mower blades. McGonigal walked to the right side of the tractor and reached down to clear a debris clog when his fingers came into contact with the mower blades, which he did not realize were still rotating. Id. at ¶ ¶ 12, 14. As a result, the tip of McGonigal's right index finger was amputated by the rotating blades. Id. at ¶ 16. Both parties agree the tractor was designed so that the rotating cutting blades would stop within five seconds of the user disengaging the attachment clutch lever and when the operator dismounted the tractor. Id. at ¶ 15; Defendant's Pretrial Memorandum at 3, McGonigal v. Sears Roebuck & Co., No. 07-4115 (E.D. Pa. filed Feb. 16, 2009).

McGonigal has brought a strict liability action against Sears alleging the tractor was defective due to over-tightening of the pivot bolt, which caused the mower blades to fail to stop within five seconds, proximately causing McGonigal's injuries.

II. Discussion

A. Quality Control/Pre-sale Testing and Inspection Procedures

McGonigal seeks to preclude Sears from admitting documents regarding its quality control/pre-sale testing and inspection procedures. See Plaintiffs' Motion at ¶¶ 21-26. The procedures concern whether an allegedly defective tractor caused McGonigal's injury. McGonigal argues Sears will use these documents to demonstrate Sears' due care, which is irrelevant and inadmissible in a strict liability case. See id. at ¶¶ 23, 24. In addition, McGonigal seeks to preclude Sears from arguing it exercised due care in manufacturing or selling the lawn tractor because it would raise negligence concepts, id. and would mislead and confuse the jury, see id. at ¶ 25. Sears contends the documents are admissible to establish the condition of the tractor when it left its possession. See Defendant Sears Roebuck and Co.'s Opposition to Plaintiffs' Motion in Limine at 1, McGonigal v. Sears Roebuck & Co., No. 07-4115 (E.D. Pa. filed Feb. 16, 2009) [hereinafter "Defendant's Response"]. At oral argument, Sears stated two witnesses will testify as to the testing and inspection procedures performed on every tractor before it leaves Sears' control.

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The pivotal trial issue will be whether the tractor's blade shutoff features were rendered inoperable by a manufacturing defect in the pivot bolt or by consumer error in failing to remove accumulated debris. Because jurisdiction is based on diversity of citizenship, Pennsylvania law applies.

Sears' quality control/pre-sale testing and inspection procedures are relevant to the issue whether accumulated mud and debris, and not a product defect, restricted the mower deck brake arms. See Defendant's Pre-trial Memorandum at 8; see e.g., Jeng v. Witters, 452 F. Supp. 1349, 1363 (M.D. Pa. 1978) (motion picture depicting developmental testing on door latch was "relevant and admissible on the issue of whether the 1963 latch was defective and unreasonably dangerous"); Bialek v. Pittsburgh Brewing Co., 242 A.2d 231, 235 (Pa. 1968) (evidence of manufacturer's bottling process in a strict products liability action constitutes evidence showing that when the bottle left the control of the manufacturer, "it was not defective or unreasonably dangerous, an issue clearly relevant under" § 402A). Here, the documents, coupled with witness testimony, make a fact of consequence, i.e., whether McGongial's lawn tractor was defective when it left Sears' control, more or less probable than without the evidence. Fed. R. Evid. 401.

B. Misuse

McGonigal seeks to preclude Sears from arguing, implying or offering into evidence or offering any testimony that McGonigal misused the lawn tractor. Sears presents two arguments regarding misuse. First, it contends McGonigal's failure to maintain the lawn tractor constituted misuse and was the sole cause of his injuries. Second, it argues McGonigal's act of placing his hand underneath the tractor's blade deck to clear a clog, in contravention of warning labels, was an unintended use.

Evidence of a plaintiff's conduct is admissible in a strict liability action to disprove a claim that a product's defect caused an injury is limited. Such conduct is admissible only to prove: (1) assumption of the risk; (2) misuse of the product; or (3) highly reckless or extraordinarily unforeseeable conduct. See Nesitt v. Sears, Roebuck & Co., 415 F. Supp.2d 530, 544 (E.D. Pa. 2005) (Davis, J.); Kramer v. Raymond Corp., 840 F. Supp. 333, 334 (E.D. Pa. 1993) (Pollak, J.) (citing Dillinger v. Caterpillar, Inc., 959 F.2d 430, 445-46 (3d Cir. 1995)). Otherwise, a plaintiff's contributory negligence is inadmissible "either to reduce the plaintiff's recovery or as a defense to liability." See Kramer, 840 F. Supp. At 334 (citing McCown v. International Harvester Co., 342 A.2d 381 (Pa. 1975)).

In a strict products liability action under Pennsylvania law, evidence of misuse is generally admissible to defeat causation. See Moyer v. United Dominion Industries, Inc., 473 F.3d 532, 542 (3d Cir. 2006) (citing Dillinger, 959 F.2d at 445; Clark v. Bil-Jax, Inc., 763 A.2d 920, 923 (Pa. Super. Ct. 2000); Charlton v. Toyota Indus. Equip., 714 A.2d 1043, 1047 (Pa. Super. Ct. 1998)). Evidence of misuse is admissible, however, "only if the misuse was the sole cause of the injury." See Moyer, 473 F.3d at 543 (citing Madonna v. Harley Davidson, Inc., 708 A.2d 507, 509 (Pa. Super. Ct. 1998) ("As [several Pennsylvania cases demonstrate, a user's negligence is not relevant if the product defect contributed in any way to the harm. However, where the defense offers evidence to establish that the accident was solely the result of the user's conduct, and not related in any way with a product defect, it is relevant and admissible for the purpose of proving causation.")).

Sears' evidence of McGonigal's misuse should be admitted if it has any tendency to show McGonigal's injuries were caused solely by misuse, rather than by a manufacturing defect. See Moyer, 473 F.3d at 543. Sears contends McGonigal's failure to maintain the tractor by "allowing mud and debris to accumulate on the lawn tractor's mower deck," see Defendant's Pretrial Memorandum at 7, was the sole cause of his injuries, and not any alleged product defect. At oral argument, Sears explained it will support its misuse argument with expert testimony to establish the accumulation of mud and debris on the tractor was the sole cause of McGonigal's injuries. Because this ...


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